Company names-Identical names

Before you can register some company names, you need to apply for ministerial consent. Your application should address the criteria for assessment outlined by Treasury.

• How to apply for consent
• Treasury Guidelines

How to apply for consent

To apply for ministerial consent, you must write a letter asking for consent to use the name. Your application should reference the 'Treasury Guidelines' outlined below and include any other evidence or claims in support of your submission.

The fee for applying for ministerial consent is $1,485.

Once complete, send your application and the fee to:

Australian Securities & Investments Commission
Ministerial Consent Applications
PO Box 4000
Gippsland Mail Centre, VIC 3841

We'll provide a written response to you as soon as a decision has been made.

Treasury Guidelines

Below is an excerpt from Treasury's Guidelines for Ministerial Consent to Body Corporate Names under the Corporations Act 2001. Your application for consent should reference the guidelines under the section 'Words governed by special purpose legislation'.

For a full copy of the guidelines, visit www.treasury.gov.au.

Introduction

Purpose of the guidelines

These guidelines set out the procedures to be followed and the criteria to be applied in considering applications for the Commonwealth Minister’s consent to body corporate names that are otherwise not available for reservation or registration under the Corporations Act 2001 (the Corporations Act). Bodies corporate in this context include companies, foreign companies and registrable Australian bodies. Consent is granted under subsection 147(2) or 601DC(2) for purposes of Parts 2B and 5B of the Corporations Act.

Responsible Commonwealth Ministers

The Commonwealth Ministers who have responsibility for the administration of the Corporations Act are the Commonwealth Treasurer, the Minister for Revenue and Assistant Treasurer, and the Parliamentary Secretary to the Treasurer.

Ministerial Consent

A name that would not otherwise be available is available if the Commonwealth Minister has consented to the name being available under subsections 147(2) and 601DC(2) of the Corporations Act. The Minister’s consent may be given subject to conditions (Corporations Act, subsections 147(3) and 601DC(3)). If a condition for the granting of ministerial consent has been breached, the Australian Securities and Investments Commission may direct the relevant body to change its name under section 158 or 601DJ.

Delegation of Minister’s powers and Direction to the Delegate

The Minister’s powers under subsections 147(2) and 601DC(2) have been delegated to certain senior officers of the Australian Securities and Investments Commission (Corporations Act, subsection 1345A(1A)). The Minister’s delegate is required to have regard to any written guidelines issued by the Minister that are in force (Corporations Act, subsection 1345A(2)). The Guidelines contained in this document are guidelines that have been issued by the Minister.

The overall policy consideration in considering applications

The overall policy consideration in considering applications under subsection 147(2) or 601DC(2) to the use of body corporate names is whether the proposed name would be likely to mislead persons dealing with the body about the nature of the body’s activities.

The following Guidelines outline the policy criteria that will normally be applied in considering applications for consent to proposed body corporate names including specific words or phrases.

However, each application is to be considered on its merits, having regard to the individual circumstances involved. Review of decisions Under subsection 1317B(1) of the Corporations Act, decisions made under subsection 147(2) and 601DC(2) of the Corporations Act are reviewable by the Administrative Appeals Tribunal under the Administrative Appeals Tribunal Act 1975.

Identical names

IDENTICAL BODY CORPORATE NAMES

The general rule under the Corporations Act is that identical names cannot be registered. Subsections 147(2) and 601DC(2) give the Minister discretion to vary this general rule. However this discretion is used only in exceptional cases.

Rules 6101(a)-(e) in Part 1 of Schedule 6 of the Corporations Regulations have clearly provided that in comparing one name with another for paragraph 147(1)(a) of the Corporations Act:

• the use of the definite or indefinite article;

• the use of ‘proprietary’, ‘Pty Ltd’, ‘Limited’, ‘Ltd’, ‘No Liability’ or ‘NL’ in one or both names ‘Corporation’ or the abbreviation ‘Corp’;

• the pluralisation of a word or words in one or both names;

• the type size and case of letters the size of numbers or other characters and any accents spaces between letters numbers or characters or punctuation marks used in one or both names;

are to be disregarded.

There are three valid exceptions to the rule that identical names should not be registered. These are:

• where two identical company names were registered by mistake and some years elapsed before the mistake came to light, by which time both companies had generated large amounts of goodwill in the names;

• where two companies in different states were registered under the same name prior to the commencement of the current scheme; and

• situations where the applicant can show that the name has been ‘squatted on’ by a person who has a history of reserving company names for no genuine purposes of his own. This history can be established through ASIC records, complaints to ASIC and Treasury records.

In such cases, both names may be available. While each case is treated on the merits, identical names are unlikely to be permitted in other circumstances.

BODY CORPORATE NAMES IDENTICAL TO EXISTING BUSINESS NAMES.

The Minister has no ability to consent to a body corporate name identical to a registered business name held by another person or body corporate.